The spread of COVID-19 (or the "coronavirus") has caused major disruptions across Canada, and we are only beginning to understand the ripple effect the virus will have on our organizations and economies. For First Nations, Métis and Inuit organizations, the impacts will be far-reaching, and many of those impacts will be different than those experienced in settler communities.
Ironically, the same diversity that lends such vibrance to Canada's Indigenous community will also be responsible for creating many complex legal problems, none of which will have a one-size-fits-all legal solution.
MLT Aikins is committed to assisting our Indigenous clients in navigating the challenges to come. To that end, we have compiled a series of resources meant to outline the kinds of legal issues Indigenous governments, organizations, businesses and individuals can expect to face in the wake of COVID-19. We are making every effort to identify and offer commentary relevant to Indigenous perspectives, as well as general business perspectives.
This blog post will be updated regularly in the coming days and weeks. The directory below contains COVID-19-related material, compiled to help you better understand and address the specific issues you, your governments, organizations and businesses may be facing. Below that, we will provide a high-level outline of the key issues. Going forward, you can expect this page to be updated regularly with content tailored to Indigenous governments, organizations, businesses and individuals.
Directory of COVID-19 Resources
The table of resources below is organized to help you identify issues that might apply to Indigenous governments, organizations, businesses and individuals.
In addition to these general items broadly applicable across Western Canada, we direct your attention to the following region-specific guidance:
- Saskatchewan – Important Amendments to Employment Standards Regulations
- Alberta – Province Implements 14 Day Unpaid COVID-19 Leave
High-Level View of Key Issues
Impact on First Nation Funding Agreements
Canada provides funding to many First Nations pursuant to Canada's First Nations and Tribal Councils National Funding Agreement Model ("Funding Agreement"). Funding Agreements made based on this model attach certain conditions to the use of funds First Nations receive. For instance, funds might be advanced by Canada for the First Nation to use in providing child and family services. The Agreement will describe the nature of the services intended to be provided, and the First Nation is expected to use the funds in that way. If the funds are not used in that way, the First Nation may be required to reimburse Canada for the so-called "ineligible expenditures". In a crisis situation, the limitations on use of funds imposed by Funding Agreements are likely a low priority for Chief and Council. Even so, there is a risk that money advanced by Canada in accordance with a Funding Agreement may remain subject to the use requirements. It is therefore important for Chief and Council to be mindful of spending to avoid having to reimburse Canada for ineligible expenditures later. We note that the previously announced Indigenous Community Support Fund is expected to help alleviate some of the pressures Indigenous governments will face, but that funding is not expected to be available until April 2020, after the initiative receives Royal Assent.
Communities should be mindful in maintaining records and receipts of resources spent in relation to COVID-19 matters to increase the chances of full reimbursement under existing or yet- to-be announced programs.
Métis and Inuit communities have similar funding agreements in place with Canada. The communities' obligations under those agreements should be borne in mind in responding to the crisis.
Economic Stability for Businesses and Individuals
On March 18, 2020, Canada announced a series of economic measures intended to provide economic stability for businesses and individuals alike. While these measures are not specifically directed to Indigenous businesses or individuals, they will nevertheless play an important role in ensuring Indigenous businesses and individuals can weather the turbulent economic times ahead. For businesses, Canada has announced initiatives to increase access to credit, and to subsidize employee wages to enable employers to maintain their workforces. For individuals, a series of measures were announced including changes to the eligibility criteria for Employment Insurance, and the new Emergency Care Benefit and Emergency Support Benefit, among other things. As details become available, we will publish blog posts with an overview of these programs that may be referenced by employers and employees.
Contract Management and Insurance
Contracts, by their nature, bind the parties to them to perform specific tasks. If those tasks are not performed, it can sometimes mean the party failing to perform will be liable for breach of contract. With that said, most contracts include special clauses that release parties from performing their obligations in the event of disaster or other events beyond the parties' control. Additionally, there are legal rules in place that may release parties from having to perform their contractual obligations when circumstances change. For more information, see our blog post on excusing non-performance of contractual obligations, and our post on considerations for project agreements.
As the impact of COVID-19 grows, Indigenous governments, organizations and businesses should consider their insurance coverage for losses from the various operational impacts related to COVID-19. In particular, considering what insurance policies they have in place to address such operational impacts, and what the relevant limitations are with respect to that insurance, are good places to start. For example, some organizations may have business interruption insurance coverage under their commercial general liability insurance. Traditionally, such insurance required some physical damage to a facility (e.g. from fire or flood) and would not have provided coverage for losses caused by a virus such as COVID-19. This may be subject to additional endorsements on insurance policies. In addition to considering what insurance is available, organizations should contact their insurance advisers early to ensure that they are taking appropriate steps to document and mitigate losses.
Workplace Preparedness
There are a number of considerations that governments, organizations and businesses – all of which are important employers in Indigenous governments – should make in preparing the workplace and operations for the weeks and months ahead.
From a safety perspective, there are simple measures a government, organization or business can implement in the workplace to prevent the spread of COVID-19 among staff. Employers will also be faced with many questions from staff – the answers to which may not be readily apparent. Our workplace preparedness blog highlights helpful resources for employers, including a printable risk-prevention infographic and common questions and answers to employee questions.
Another important aspect of workplace preparedness has to do with the flow of information through your organization. In managing operations through the COVID-19 outbreak, you may need to collect information from employees, customers or clients. Privacy legislation applies to the collection and use of personal information, and it is important for governments, organizations and businesses to respect privacy laws as they navigate the new operational landscape. Learn more about privacy obligations in our COVID-19 privacy blog.
A third aspect of workplace preparedness relates to protecting information systems. Cybercriminals have already taken advantage of the sense of general panic related to the COVID-19 outbreak and devised ways to exploit that panic to compromise information systems or processes. The results of cybercriminal efforts can be devastating, and include financial loss or pose threats to your business continuity. To learn more about the cyber risks facing all kinds of organizations, read our COVID-19 cybersecurity blog.
Conclusion
These are some of the key considerations we suggest Indigenous governments, organizations and businesses keep in mind as we all forge ahead and adjust to the new business environment. This page will be updated with more information and commentary as it becomes available, and our group of experienced practitioners are available to assist with any specific legal questions you may have. MLT Aikins wishes you and your community good health and wellness in this difficult and turbulent time.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
